Should guardians give opinions?

A former mentee of mine, who is developing a thriving practice as a guardian ad litem in private custody cases, recently asked for my opinion on whether guardians should give opinions. S.C. Code § 63-3-830(A)(6) prohibits guardians from making recommendations on custody in their final written report and places limits on making custody recommendations at the merits hearing. However nothing but the guardian’s own discretion prevents him or her from making such recommendations in preliminary reports, temporary hearings, or directly to the parties and their attorneys.

Yet, while the rules don’t prohibit it, my experience is mixed, and generally negative, when guardians give opinions. Sometimes it can help parties reach a reasonable resolution. Sometimes it can bully one party into accepting a proposal that party believes is unjust. And, most often, it causes the party who dislikes the opinion to stop cooperating with and start attacking the guardian.

The few times when guardian opinions can be helpful are when they are not on ultimate issues of custody or visitation and when they summarize facts based on the guardian’s direct observation. An opinion such as “dad has a substance abuse problem and here’s what leads me to this conclusion…” can sometimes help the parties resolve the case (assuming dad or his attorney becomes convinced that this opinion will be demonstrated at trial). For such opinion to be useful it must have substantial data to justify it and not have substantial data to dispute it. Without this factual basis, the party on the receiving end of this opinion will go into attack mode and the guardian will be rendered ineffective in his or her future investigation. However, such an opinion can carry more power than a mere recitation of facts leading to the opinion–some folks simply need to hear the obvious.

However when guardians given opinions without substantial facts to justify that opinion, or when the facts are subject to multiple interpretations, they are no longer acting like guardians and are now acting like judges. Since they aren’t the judge, and the parties know that they are not the judge, their opinion carries no weight and the party who doesn’t like the opinion will now begin to attack the guardian as biased.

The worst situation is when guardians opine on custody of visitation issues. There are good ways for guardians to express their views on many custody issues without giving opinions. A guardian who tells the parties that “the current visitation schedule appears to be working well for the child and here’s why…..” conveys information that the status quo on custody/visitation is likely in the child’s best interests, and does so without providing an actual opinion. A guardian who explains and justifies what problems exist with the status quo is also conveying useful information without rendering an opinion. However a guardian who gives opinions on whether a parent should have three weeks of summer visitation or four weeks is simply hobbling settlement. The parent who likes the “three week” opinion will see no reason to offer more while the parent who wants four weeks has no reason to give weight to the guardian’s opinion. I’ve actually had a settlement fall apart when a guardian gave an opinion on this very issue.

Consider a dispute over whether a parent’s weekend visitation should end Sunday evening or Monday morning. A guardian who notes that this parent lives fifty miles from the child’s school and inquires how this parent might get the child to school Mondays may help the parties resolve this issue. A guardian who simply says “I think the parent should return the child Sunday nights” has merely made an enemy. The same “opinion” is being conveyed in both circumstances but, by rendering an actual opinion, the guardian has merely rendered himself ineffective.

Opinions that summarize nearly indisputable evidence and are not on ultimate custody/visitation issues can be helpful. All other opinions merely render the guardian ineffective and can actually hinder resolution.